Browsing by Author "Turunen, Maija"

This study looks into the relationship between international humanitarian law and human rights law. The former is specific law that applies in situations of armed conflict, while the latter is general law applicable at all times. This means that, at least in principle, their scopes of application overlap during armed conflict. The aim of the study is to examine the relevance of human rights law in armed conflict in theory as well as in practice. First, it is investigated how these two branches of international law relate to one another by looking at their objectives, origins, similarities and differences, as well as their mutual references. Both branches endeavour to protect individuals, although they have separate origins and somewhat different standing points: the former has been developed to alleviate unnecessary human suffering during war by regulating the actions of the armed forces towards the enemy people, whereas the latter is essentially meant for protecting citizens from arbitrary exercise of power of their own State by giving them various rights. In addition to the aforementioned differences, it is noteworthy that the regimes have dissimilar systems of implementation, the one of human rights law being clearly more effective with the right to individual petition, for instance. The main sources of humanitarian law are the Geneva Conventions of 1949 with their additional protocols of 1977, and those of human rights law include the International Covenant on Civil and Political Rights by the United Nations as well as regional human rights treaties, especially the European Convention on Human Rights. Even though there are various links and mutual references between humanitarian law and human rights law – one of the most significant ones being the derogation clauses in human rights treaties, which allow for derogating from most human rights norms in an emergency like armed conflict – there are no detailed rules on the interaction between humanitarian law and human rights law, so the views of scholars and case law are significant when examining their relationship. A crucial theoretical question not clearly answered by treaty law is whether humanitarian law and human rights law are simultaneously applicable, and if so, what is their mutual hierarchy like. The International Court of Justice, for example, has confirmed the concurrent applicability. As for the hierarchy, there seems to have been a gradual shift from considering humanitarian law as a whole primary as specific law, to an interpretive approach according to which either humanitarian or human rights law may be given primacy depending on which one provides a more suitable and precise norm in a particular case. The humanitarian treaty rules concerning non-international armed conflicts are sparser and more vague than those concerning international armed conflicts. However, by means of customary international law, most rules on international conflicts also apply to non-international ones. Humanitarian rules are in many cases more detailed and protective than human rights norms, and in other cases it is the other way around. Case law, too, seems to show that the regimes are more complementary than conflicting in practice. This concerns mainly situations outside the battlefield during armed conflict. When it comes to the hostilities in international conflicts, human rights law is seldom relevant as it only applies extraterritorially if the State has effective control over the area or person in question. Thus, humanitarian law applies alone. What is more, there are no clear rules on attacking or detaining fighters in non-international armed conflicts; the views of humanitarian and human rights law differ. The case law of human rights treaty bodies suggests that there is a requirement to arrest fighters instead of attacking them whenever possible and all fatal use of force ought to be investigated afterwards. By contrast, in humanitarian law attacking enemy combatants is the norm. With regard to detaining fighters in non-international conflicts, the case law appears to provide the fighters with better procedural guarantees than humanitarian law. It can be considered reasonable that the rules that offer more comprehensive protection to the individual prevail if feasible – the opposite view would be hard to justify when the parties to a conflict are obligated by those rules. The mandate of human rights treaty bodies is limited to their own treaty, but humanitarian law can be used for interpretation, which, at the same time, gives humanitarian rules a chance to be taken into account regardless of the weak system of implementation in humanitarian law. Despite certain issues to be solved regarding the simultaneous application, it appears that the co-operation between the regimes is synergetic and even inevitable.